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Lee v. Lee

Court of Appeals of Tennessee, Knoxville

May 31, 2019

LAURIE ELIZABETH LEE
v.
BRYAN MITCHELL LEE

          Assigned on Briefs March 27, 2019

          Appeal from the Chancery Court for Knox County No. 191643-2 Clarence E. Pridemore, Jr., Chancellor

         This accelerated interlocutory appeal follows the denial of a motion to recuse. The party seeking recusal claimed that an in-limine motion was granted after an ex parte communication between the chancellor and the counsel moving in limine. Additionally, the party claimed that the court showed partiality by not granting a continuance of the hearing on the in-limine motion when her counsel was unable to attend due to illness. We affirm the denial of the recusal request.

         Tenn. Sup. Ct. R. 10B Interlocutory Appeal as of Right; Judgment of the Chancery Court Affirmed and Case Remanded

          Jason S. Randolph, Dandridge, Tennessee, for the appellant, Laurie Elizabeth Lee.

          W. Neal McBrayer, J., delivered the opinion of the court, in which Charles D. Susano, Jr., J., and J. Steven Stafford, P.J., W.S., joined.

          OPINION

          W. NEAL McBRAYER, JUDGE

         In the Chancery Court for Knox County, Tennessee, Laurie Elizabeth Lee petitioned to modify a permanent parenting plan. The chancery court set the matter for a December 5, 2018 trial. Two weeks prior to the trial, the father, Bryan Mitchell Lee, filed an in-limine motion, which was also set for December 5. The in-limine motion was not included with the petition for recusal appeal.

         On December 4, Ms. Lee's counsel, Jason Randolph, fell "ill with a severe stomach virus which had ravaged Jefferson County." Mr. Randolph much later explained that he "was stricken with the Mother of all viruses rendering him unable to move due to cramping and pain" and that he "was unable to concoct a pleading and simply texted his assistant to make the urgent notification." On the afternoon of December 4, the chancery court received the urgent notification, a facsimile from Mr. Randolph's assistant advising the court that Mr. Randolph was ill and was unable to appear in court the next day. The facsimile was also not included with the petition for recusal appeal.

         The following day the chancery court continued the trial on the petition to modify to January 31, 2019. But the court heard the in-limine motion. Based upon, among other things, "the argument of counsel," the court granted the in-limine motion and "barred [Ms. Lee] from calling any witnesses to testify at the trial . . . other than herself." The court also awarded Mr. Lee costs and attorney's fees, leaving the determination of the proper amount until trial. In its order entered on December 18, 2018, the court acknowledged the facsimile from Mr. Randolph's assistant but noted that "no formal request or Motion for Continuance of the trial date was made by [Ms. Lee] or her counsel[] and both [Ms. Lee] and her counsel failed to attend court on the trial date without seeking leave of court to do so."

         On January 31, the trial did not take place as scheduled. Apparently, Mr. Randolph "had a series of juries to prepare for," so the court reset the trial for Tuesday, March 5, 2019.

         On Friday, March 1, Ms. Lee moved to recuse the chancellor. As grounds, the motion cited the court's order granting the in-limine motion. From the order, Ms. Lee concluded that "[e]vidently, Father's counsel appeared [at the hearing] and had Exparte Communication which resulted in an Order being issued" because the order stated it was based upon "the argument of counsel." The motion went on that, "by having Exparte Communication and hearing [sic] without hearing all witnesses and facts," the court "failed to consider all of the facts." According to Ms. Lee, "[t]he failure of the Court to allow the case to be heard completely before making a ruling shows a lack of impartiality and impairs the fairness of the matter pending before the Court."

         Ms. Lee also faulted the court for not treating the facsimile of Mr. Randolph's assistant as a request for a continuance of the hearing. Describing the court's requirement of a motion for continuance "when illness strikes suddenly" as "draconian," Ms. Lee submitted that "[i]t [wa]s obvious the Court had appeared and acted partially in this case to my . . . prejudice."

         The chancery court denied the recusal request. The court acknowledged that counsel for Mr. Lee appeared at the hearing on the in-limine motion and argued in the absence of both Ms. Lee and her counsel. But the court did not consider argument in open court ex parte communication. The court also again acknowledged the letter sent from Mr. Randolph's office the day prior to the hearing. But it noted that no motion ...


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